Manning v. Hunt , 119 F.3d 254 ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD O. MANNING, M.D.;
RALEIGH WOMEN'S HEALTH
ORGANIZATION, INCORPORATED; TAKEY
CRIST, M.D., on their own behalf
and on behalf of their minor
patients,
Plaintiffs-Appellants,
v.
JAMES B. HUNT, JR., Governor of the
State of North Carolina, in his
official capacity; RONALD L. MOORE,
District Attorney of Buncombe
No. 97-1126
County, in his official capacity;
PETER S. GILCHRIST, III,
Mecklenburg County District
Attorney, in his official capacity; C.
COLON WILLOUGHBY, JR., Wake
County District Attorney, in his
official capacity; WILLIAM H.
ANDREWS, Onslow County District
Attorney, in his official capacity,
Defendants-Appellees,
NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED,
Amicus Curiae.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-95-229-1-T)
Argued: April 10, 1997
Decided: July 11, 1997
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Clarke wrote the opin-
ion, in which Judge Murnaghan and Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Deborah Koff Ross, ACLU-NC LEGAL FOUNDA-
TION, Raleigh, North Carolina, for Appellants. Grady L. Balentine,
Jr., Assistant Attorney General, Raleigh, North Carolina, for Appel-
lees. ON BRIEF: Ellen W. Gerber, High Point, North Carolina; C.
Frank Goldsmith, Marion, North Carolina; Catherine Weiss, Louise
Melling, Talcott Camp, Reproductive Freedom Project, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York,
for Appellants. Michael F. Easley, North Carolina Attorney General,
Raleigh, North Carolina for Appellees. Paul Stam, Jr., Theodore S.
Danchi, Apex, North Carolina, for Amicus Curiae.
_________________________________________________________________
OPINION
CLARKE, Senior District Judge:
This case comes before the Court on appeal of the District Court's
denial of a preliminary injunction enjoining enforcement of North
Carolina's Act to Require Parental or Judicial Consent for an Un-
emancipated Minor's Abortion, N.C. Gen. Stat. § 90-21.6 to .10 ("the
Act"). In their complaint, Appellants challenge the Act as violating
various provisions of the U.S. Constitution on its face. On November
30, 1995, the United States District Court for the Western District of
North Carolina entered a preliminary injunction partially enjoining
enforcement of the Act. On May 22, 1996, this Court vacated the Dis-
trict Court's order in its entirety and remanded for further proceed-
ings. Appellants then renewed their motion for a preliminary
2
injunction. That motion was denied by the District Court on Decem-
ber 18, 1996. Manning v. Hunt, No. 1:95cv229 (W.D.N.C. Dec. 18,
1996). Appellants now appeal the District Court's decision. For the
reasons set forth below, this Court affirms the District Court's opin-
ion.
I.
A.
Under the terms of the Act, an unemancipated minor may not
obtain an abortion unless the physician obtains the written consent of
the minor and:
(1) A parent with legal custody of the minor, or
(2) The legal guardian or legal custodian of the minor, or,
(3) A parent with whom the minor is living, or
(4) A grandparent with whom the minor has been living for
at least six months immediately preceding the date of the
minor's written consent.
N.C. Gen. Stat. § 90-21.7(a) (Michie 1996). These requirements do
not apply when, in the physician's best judgment, it is determined that
a medical emergency exists which requires an immediate abortion. Id.
§ 90-21.9.
The Act contains a judicial bypass of these consent requirements.
Under the bypass procedure, the minor may petition a state district
court for a waiver of the above consent requirement if the persons
empowered to give consent refuse to do so or are unavailable within
a reasonable time or manner, or if the minor elects not to seek the
required consent. Id. § 90-21.7(b). The minor may proceed on her
own or through a guardian ad litem, and the state district court is
required to advise her of her right to counsel and appoint counsel if
she so requests. Id § 90-21.8(c). The Act requires court proceedings
regarding a petition for the waiver of parental consent be confidential
3
and be given precedence over other matters before the court. Id.
§ 90-21.8(d). If the minor so requests, no notice will be served upon
her parents, guardian, or custodian regarding the petition. Id.
§ 90-21.8(f). Under no circumstances is the state district court to wait
more than seven days from the time of the petition's filing before
holding its hearing and ruling on the petition unless the minor agrees
to an extension of time. Id. During the hearing, the state district court
is required to hear evidence regarding emotional development, matu-
rity, intellect, alternatives to the abortion, and any other evidence
deemed useful. Id. The record of the evidence must be maintained in
a confidential manner. Id. § 90-21.8(f). The state district court is
required to waive the consent requirement if it finds that (1) the
minor is mature and well-informed enough to make the decision to
abort her pregnancy on her own, (2) it would be in the minor's best
interest to waive the consent requirement, or (3) the minor is a victim
of rape or incest. Id. § 90-21.8(e). Pursuant to rules enacted by the
North Carolina Supreme Court, the state district court must issue its
ruling at the conclusion of the hearing.
If the court finds that the minor has been the victim of rape or
incest, it is required to report this finding to the Director of North Car-
olina's Department of Social Services. Id. § 90-21.8(f). This require-
ment is consistent with another North Carolina statute which places
on all persons a duty to report child abuse, neglect, or death due to
maltreatment. Id. § 7A-543. All information received by the Depart-
ment of Social Services is to be held in the strictest confidence. Id.
§ 7A-544. Of course, the Department's investigation may well bring
the allegations of rape or incest to the attention of the minor's parents.
The Act provides that the minor may appeal a denial of her petition
by the state district court to the superior court. Id. § 90-21.8(h). The
minor must file the appeal within 24 hours from the date of the issu-
ance of the state district court's order. Id. This hearing is de novo and,
by statute, is to be held as soon as possible within seven days of the
filing of the appeal. Id. The North Carolina Supreme Court has imple-
mented rules requiring that the superior court issue its decision within
48 hours of its hearing. Further appeals may be made to the North
Carolina Court of Appeals and Supreme Court, but the Act contains
no provisions governing such appeals. In the only state court opinion
regarding the Act that has come to our attention, the North Carolina
4
Court of Appeals has ruled that the minor does not have an appeal as
of right to the appellate courts beyond the superior court, but may
petition for a writ of certiorari, which the appellate courts must review
promptly under standard procedures. In re Doe, ___ S.E.2d ___, ___,
No. COA 97-323 (N.C. Ct. App. June 3, 1997).
Any person who, with knowledge or with reckless disregard as to
whether the patient is an unemancipated minor, intentionally performs
an abortion on an unemancipated minor and who intentionally or
knowingly fails to conform to the Act's requirements is guilty of a
class 1 misdemeanor. Id. § 90-21.10.
B.
Plaintiffs-Appellants are physicians, who practice in North Caro-
lina, and the Raleigh Women's Health Organization, Inc. Dr. Richard
O. Manning is medical director of the Western Carolina Medical
Clinic in Asheville, North Carolina, and of Family Reproductive
Health in Charlotte, North Carolina. Dr. Manning states that many of
his patients are minor women who need abortions. Dr. Takey Crist is
a physician practicing obstetrics and gynecology in Onslow County,
North Carolina, and claims that he routinely performs abortions on
unemancipated minors. The Raleigh Women's Health Organization,
Inc., located in Wake County, North Carolina, provides health and
educational services to women, including abortions through the twen-
tieth week of pregnancy. Many of its patients are unemancipated
minors seeking abortions who cannot obtain parental consent or
involve their parents in their decision to have an abortion.
Defendants-Appellees are officials within the government of North
Carolina and are sued in their official capacities. These officials are
bound to carry out the laws of North Carolina, including the Act
which is the subject of this litigation and its provisions for prosecu-
tion of anyone who performs an abortion which does not comply with
the Act's requirements.
Appellants filed this facial challenge -- in which the Appellants
argue that the Act is unconstitutional based on its language and the
language of the rules accompanying it without consideration of the
actual application of the Act -- seeking preliminary and permanent
injunctive relief enjoining enforcement of the Act on November 2,
5
1995. Appellants claim that the Act violates the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments to the U.S. Constitution. The Act,
as argued in their complaint, imposes an undue burden on the right
of a pregnant unemancipated minor to an abortion by (1) failing to
clearly define the term "parent with custody," (2) failing to provide
an adequate, expeditious, and confidential judicial bypass for preg-
nant minors who appeal a denial of her petition to the appellate courts
of North Carolina, (3) requiring that a pregnant minor file her appeal
of a denial of her petition by the state district court to the superior
court within 24 hours of the state district court's decision,
(4) requiring that the hearing before the superior court be held de
novo, (5) requiring that the minor state affirmatively that she does not
want her parents, custodian, or guardian to be informed of her deci-
sion to have an abortion, and (6) requiring that a judge who finds that
the minor was the victim of rape or incest report such finding to the
Department of Social Services ("reporting requirement").
In its first opinion on Appellants' motion for a preliminary injunc-
tion, the District Court below partially granted the motion and
enjoined enforcement of the Act's reporting requirement. Both parties
appealed the District Court's decision. A panel of this Court found
that the District Court had improperly applied this Circuit's prevailing
caselaw with regard to the grant or denial of a preliminary injunction,
vacated the District Court's order, and remanded the case for proceed-
ings consistent with its opinion. See Manning v. Hunt, Nos. 95-3181,
95-3182 (4th Cir. May 22, 1996). Appellants again moved the District
Court for a preliminary injunction against enforcement of the Act.
By Order dated December 18, 1996, Manning v. Hunt, No.
1:95cv229 (W.D.N.C. Dec. 18, 1996), the District Court denied
Appellants' motion in its entirety and refused to enjoin enforcement
of the Act. The District Court first found that Appellants had standing
to challenge the Act in federal court. The District Court then reached
the issue of the preliminary injunction and found that the Appellants
had failed to make the required showing of likelihood of irreparable
harm to the plaintiffs, that whatever likelihood of harm to the plain-
tiffs might exist was outweighed by the likelihood of harm to the state
of North Carolina, that Appellants were not likely to succeed on the
merits, and that the public interest was advanced by a denial of
injunctive relief.
6
Appellants now appeal the District Court's order of December 18,
1996. The sole issue decided by the District Court and which is now
pending before this Court is whether a preliminary injunction should
issue barring enforcement of the Act. Appellants claim the District
Court abused its discretion by failing to hold that the balance of hard-
ships favors them, by failing to hold that they are likely to succeed
on the merits in their challenge that the Act's judicial bypass provi-
sion is unconstitutional on its face, by failing to hold that enjoining
the Act is in the public interest, and because the District Court errone-
ously interpreted the Act's medical emergency exception to require a
court order before a minor may obtain an emergency abortion.
II.
Abortion is recognized as a fundamental right protected by the Due
Process Clause of the Fourteenth Amendment.1 Roe v. Wade, 410
U.S. 113, 155 (1973). Before the Court reaches the District Court's
decision regarding the preliminary injunction, it is useful to briefly
review the Supreme Court's opinions with regard to abortion in gen-
eral and parental consent statutes in particular.
A.
In Roe, the Supreme Court overturned a Texas statute which pro-
hibited abortions unless an abortion was necessary to save the life of
the mother. Writing for a majority of the Court, Justice Blackmun
found that the right of personal privacy includes the right to abortion,
but that the right "is not unqualified and must be considered against
important state interests in regulation." 410 U.S. at 154. The Court
determined that because abortion is a fundamental right, state abortion
regulations should be analyzed under the strict scrutiny standard of
review and are therefore valid only if the regulation could be justified
by a compelling state interest and if the regulation was narrowly
drawn to express only that legitimate state interest. See id. at 155. The
Court found that the state interests in preserving and protecting the
health of the pregnant woman and in protecting potential human life
_________________________________________________________________
1 The Fourteenth Amendment states in pertinent part: ". . . nor shall any
State deprive any person of life, liberty or property, without due process
of law." U.S. Const. amend. XIV.
7
grow in substantiality as the woman approaches term, becoming com-
pelling at some point in the pregnancy. Id. at 162-63. Roe then laid
out the so-called "trimester" test, in which the Court found that during
the first trimester, the decision to abort must be left to the wishes of
the pregnant woman and the judgment of the woman's physician; that
during the time after the first trimester but before viability of the
fetus, the state could regulate the abortion decision in ways reason-
ably related to maternal health; and that after viability, the state could
regulate or proscribe abortion except when necessary to preserve the
life or health of the mother. Id. at 164-65.
Subsequent to Roe, the Supreme Court's caselaw has reflected the
troublesome nature of the issues involved. The central holding of Roe
-- that a woman has a fundamental right to choose to have an abor-
tion -- has not eroded. Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 857-58 (1992) (plurality opinion). However,
there have been very few clear majorities applying any one standard
when determining the constitutionality of a state's regulation of abor-
tion. Review of these cases is unnecessary for our decision here; it
suffices to say that since Roe, no one standard of review has secured
a solid majority of the Court.
The trend does appear to be a move away from the strict scrutiny
standard toward the so-called "undue burden" standard of review. In
Casey, a majority of the Court reaffirmed Roe's essential holding.
Casey, 505 U.S. at 871 (plurality opinion of O'Connor, J., joined by
Kennedy, J., and Souter, J.); id. at 912-13 (Stevens, J., concurring);
id. at 923 (Blackmun, J., concurring). The plurality opinion of Justice
O'Connor, however, found the trimester analysis of Roe to be
unworkable and unnecessary to its essential holding. Id. at 872. Fur-
ther, the plurality emphasized that the essential holding of Roe was
not a one-sided recognition of an absolute right to an abortion. The
plurality stated that "[t]hough the woman has a right to choose to ter-
minate or continue her pregnancy before viability, it does not at all
follow that the State is prohibited from taking steps to ensure that this
choice is thoughtful and informed." Id. at 872 (plurality opinion).
Thus, it would be an overstatement to describe the right as one "to
decide whether to have an abortion `without interference from the
State.'" Id. at 875 (plurality opinion) (quoting Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 61 (1976)).
8
Instead, the plurality defined the right to abortion as "a right `to be
free from governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.'"
Id. (plurality opinion) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453
(1972)). Accordingly, the Court found that the "undue burden stan-
dard of review is the appropriate means of reconciling the State's
interest with the woman's constitutionally protected liberty." Id. at
876 (plurality opinion). The plurality defined the undue burden stan-
dard as follows:
A finding of an undue burden is a shorthand for the conclu-
sion that a state regulation has the purpose or effect of plac-
ing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus. A statute with this purpose is
invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the
woman's free choice, not hinder it. And a statute which,
while furthering the interest in potential life or some other
valid state interest, has the effect of placing a substantial
obstacle in the path of a woman's choice cannot be consid-
ered a permissible means of serving its legitimate ends. . . .
In our considered judgment, an undue burden is an unconsti-
tutional burden. Understood another way, we answer the
question, left open in previous opinions discussing the
undue burden formulation, whether a law designed to fur-
ther the State's interest in fetal life which imposes an undue
burden on the woman's decision before fetal viability could
be constitutional. The answer is no.
Id. at 877 (plurality opinion) (citations omitted).
The difficulty presented to lower federal courts following Casey
lies in the fact that only three justices -- Justices O'Connor, Ken-
nedy, and Souter -- have specifically adopted this undue burden stan-
dard. Other courts, however, have applied the undue burden standard
in cases arising after Casey.2 We deem it proper to follow the trend
_________________________________________________________________
2 The District Court below also correctly recognized that courts in other
jurisdictions are applying the undue burden standard. See Manning, No.
9
clearly set by other courts and the District Court below. The inquiry
in this case is whether the North Carolina Act places an undue burden
on an unemancipated minor who wishes an abortion.
B.
Unlike its trend in general abortion jurisprudence, the Supreme
Court has defined rather specific guidelines to be followed by states
when enacting, and by federal courts when reviewing, statutes requir-
ing parental consent before a minor may obtain an abortion. The
Court now briefly reviews these guidelines and the rationales relied
upon in their formulation.
The Supreme Court has consistently treated the issue of abortion
for unemancipated minors differently from that of abortion for adults.
In addition to the personal and state interests at stake when an adult
seeks an abortion is the added fact that "the status of minors under the
_________________________________________________________________
1:95cv229, slip op. at 9-10 n.4 (citing Rappa v. New Castle County, 18
F.3d 1043, 1057 (3d Cir. 1994) ("[A]ny time a regulation constituted an
undue burden, Justice O'Connor and those Justices who favored more
severe tests would form a majority to strike down the statute. Any time
a regulation did not constitute an undue burden, Justice O'Connor and
those Justices who favored rational basis review would form a majority
to uphold the statute. Thus, the undue burden test had become the law
of the land even before Casey."); Armstrong v. Mazurek, 94 F.3d 566,
567 (9th Cir. 1996) (holding that in ruling on a motion for a preliminary
injunction to enjoin enforcement of an abortion statute, district court
properly applied the "undue burden" test set forth in Casey); Planned
Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456 n.7, 1457
(8th Cir. 1995), cert. denied, Janklow v. Planned Parenthood, Sioux
Falls Clinic, ___ U.S. ___, 116 S. Ct. 1582 (1996) (discussing the divi-
sion among the Court in Casey and noting that the undue burden standard
appears to be the "lowest common denominator"); Jane L. v. Bangerter,
61 F.3d 1493, 1503-04 (10th Cir. 1995), rev'd on other grounds sub
nom., Leavitt v. Jane L., ___ U.S. ___, 116 S. Ct. 2068 (1996) ("Casey
admittedly replaces Roe's strict scrutiny with an `undue burden' analysis
. . . ."); Barnes v. Mississippi, 992 F.2d 1335, 1338 (5th Cir.), cert.
denied, 510 U.S. 976 (1993) (citing Casey as formulating the "undue
burden standard for abortion regulations")).
10
law is unique in many respects." Bellotti v. Baird, 443 U.S. 622, 633
(1979). This status can be traced to the "unique role in our society of
the family, the institution by which `we inculcate and pass down
many of our most cherished values, moral and cultural,'" a role which
"requires that constitutional principles be applied with sensitivity and
flexibility to the special needs of parents and children." Id. at 634
(quoting Moore v. East Cleveland, 431 U.S. 494, 503-04 (1977) (plu-
rality opinion)). Thus, when faced with the exercise of fundamental
rights by minors, courts must balance two factors which do not apply
to adults. On the one hand, "[a] child, merely on account of [her]
minority, is not beyond the protection of the Constitution." Id. at 633.
On the other hand, there are reasons which justify"the conclusion that
the constitutional rights of children cannot be equated with those of
adults: the peculiar vulnerability of children; their inability to make
critical decisions in an informed, mature manner; and the importance
of the parental role in child rearing." Id. at 634; see also Stanford v.
Kentucky, 492 U.S. 361, 395 (1988) (Brennan, J., dissenting)
("[M]inors are treated differently from adults in our laws, which
reflects the simple truth derived from communal experience that juve-
niles as a class have not the level of maturation and responsibility that
we presume in adults and consider desirable for full participation in
the rights and duties of modern life."); Thompson v. Oklahoma, 487
U.S. 815, 835 (1987) ("Inexperience, less education, and less intelli-
gence make the teenager less able to evaluate the consequences of his
or her conduct while at the same time he or she is much more apt to
be motivated by mere emotion or peer pressure than is an adult.").
In Danforth, supra, the Supreme Court ruled that a blanket parental
consent statute was unconstitutional because it gave parents "absolute
power to overrule a determination . . . to terminate the [minor's] preg-
nancy." 428 U.S. at 75. The North Carolina Act does not create a
parental veto over the minor's decision to obtain an abortion. The Act
provides a judicial bypass in which the minor can avoid the consent
requirement and any need to notify her parents of her decision by
obtaining a court order allowing the abortion. The majority of Appel-
lants' challenge attacks the Act's judicial bypass of its consent
requirement.
With the interests discussed previously in mind, the Supreme Court
first addressed the requirements of a valid judicial bypass in Bellotti,
11
supra. There, the Court struck down a Massachusetts statute which
required parental consent or a court order upon a finding of good
cause shown before a minor could obtain an abortion. The plurality
opinion recognized that the states "validly may limit the freedom of
children to choose for themselves in the making of important, affir-
mative choices with potentially serious consequences." Bellotti, 443
U.S. at 635. Further, the plurality recognized that states often protect
"youth from adverse governmental action and from their own imma-
turity by requiring parental consent to or involvement in important
decisions by minors." Id. at 637. At the same time, however, the plu-
rality stated that "[t]he need to preserve the constitutional right and
the unique nature of the abortion decision, especially when made by
a minor, require a State to act with particular sensitivity when it legis-
lates to foster parental involvement in this matter." Id. at 642.
The plurality then set out the constitutional requirements for a valid
parental consent statute. If a state requires an unemancipated pregnant
minor to obtain the consent of a parent, it "also must provide an alter-
native procedure whereby authorization for the abortion can be
obtained." Id. at 643 (footnote omitted). Such a proceeding must com-
ply with the following requirements:
A pregnant minor is entitled in such a proceeding to show
either: (1) that she is mature enough and well enough
informed to make her abortion decision, in consultation with
her physician, independently of her parents' wishes; or
(2) that even if she is not able to make this decision inde-
pendently, the desired abortion would be in her best inter-
ests. The proceeding in which this showing is made must
assure that a resolution of the issue, and any appeals that
may follow, will be completed with anonymity and suffi-
cient expedition to provide an effective opportunity for an
abortion to be obtained.
Id. at 643-44 (footnote omitted). Because the Massachusetts Supreme
Court had interpreted the statute to require parental consent before a
minor could obtain a court order, the statute was found to be too
restrictive and was struck down. Id. at 646-47; see also id. at 655-56
(Stevens, J., concurring in judgment).
12
The rationales behind Bellotti have been adopted repeatedly by
subsequent Supreme Court majorities. See e.g. Hodgson v. Minnesota,
497 U.S. 417, 461 (1990) (O'Connor, J., concurring); id. at 497-98
(Kennedy, J., joined by Rehnquist, C.J., White, J., and Scalia, J., con-
curring); Planned Parenthood Ass'n of Kansas City, Mo, Inc. v.
Ashcroft, 462 U.S. 476, 491-92 (1983) (opinion of Powell, J., joined
by Burger, C.J.); id. at 504 (O'Connor, J., joined by White, J., and
Rehnquist, J., concurring); H.L. v. Matheson, 450 U.S. 398, 408-12
(1980). The Bellotti requirements for a valid judicial bypass were spe-
cifically adopted by a majority of the Supreme Court in Ohio v. Akron
Center for Reproductive Health, 497 U.S. 502, 511-13 (1990) ("Akron
II").
By now, then, it is clear that in order to survive constitutional scru-
tiny, the judicial bypass of a parental consent statute must comply
with a four-part test based on the plurality's holding in Bellotti. Such
a statute must:
(i) allow the minor to bypass the consent requirement if she
establishes that she is mature enough and well enough
informed to make the abortion decision independently;
(ii) allow the minor to bypass the consent requirement if
she establishes that the abortion would be in her best inter-
ests; (iii) ensure the minor's anonymity; and (iv) provide
for expeditious bypass procedures.
Lambert v. Wicklund, ___ U.S. ___, ___, 117 S. Ct. 1169, 1171 (1997)
(per curiam) (citing Bellotti, 443 U.S. at 643-44 (plurality opinion);
Akron II, 497 U.S. at 511-13). Because of the Supreme Court's strong
reliance on these requirements, a statute which is addressed by and
complies with the Bellotti standards cannot be said to be an undue
burden. Accordingly, when reviewing the merits of a parental consent
statute, our focus is on the compliance of the statute with the four
Bellotti standards stated above. If the Bellotti requirements do not
address the state regulation, the court then turns to general abortion
caselaw and determines if the regulation is an undue burden irrespec-
tive of Bellotti.
13
III.
This Circuit reviews the grant or denial of a preliminary injunction
under the abuse of discretion standard. Direx Israel, Ltd. v. Break-
through Medical Corp., 952 F.2d 802, 814 (4th Cir. 1991).
"[A] preliminary injunction is an extraordinary remedy, to be
granted only if the moving party clearly establishes entitlement to the
relief sought." Hughes Network Systems, Inc. v. Interdigital Commu-
nications Corp., 17 F.3d 691, 693 (4th Cir. 1994). It is now axiomatic
which standards should be applied in this Circuit when determining
whether a party's motion for preliminary injunctive relief should be
granted. The proper analysis is based on this Circuit's opinion in
Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189
(4th Cir. 1977). In that case, this Circuit adopted a hardship balancing
test to be applied by the district courts when making such a determi-
nation. Rum Creek Coal Sales, Inc. v. Caperton , 926 F.2d 353, 359
(4th Cir. 1991); L.J. By and Through Darr v. Massinga, 838 F.2d 118
(4th Cir. 1988), cert. denied, 488 U.S. 1018 (1989). A district court
deciding whether to grant a preliminary injunction must consider the
following four factors:
"(1) the likelihood of irreparable harm to the plaintiff if the
preliminary injunction is denied,
(2) the likelihood of harm to the defendant if the requested
relief is granted,
(3) the likelihood that the plaintiff will succeed on the mer-
its, and
(4) the public interest."
Direx Israel, 952 F.2d at 812 (quoting Rum Creek Coal Sales, 926
F.2d at 359). The plaintiff bears the burden of establishing that these
factors favor granting the injunction. Id.
Under this hardship balancing test, the first two factors regarding
the likelihood of irreparable harm to the plaintiff if denied and of
14
harm to the defendant if granted are the most important. Id. (quoting
Rum Creek Coal Sales, 926 F.2d at 359). Thus, the first task of the
district court is to determine the harm that will be suffered by the
plaintiff if no preliminary injunction is entered. The harm demon-
strated by the plaintiff must be "`neither remote nor speculative, but
actual and imminent.'" Id. (quoting Tucker Anthony Realty Corp. v.
Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). The district court
must then balance this harm against the harm which would be suf-
fered by the defendant if the preliminary injunction is granted. Id.
Once this balancing is completed, the district court can then deter-
mine the degree to which the plaintiff must demonstrate a likelihood
of success on the merits. In this regard, we have stated:
"If, after balancing those two factors [i.e. irreparable harm
to plaintiff against harm to the defendant], the balance `tips
decidedly' in favor of the plaintiff, a preliminary injunction
will be granted if `the plaintiff has raised questions going to
the merits so serious, substantial, difficult, and doubtful, as
to make them fair ground for litigation and thus for more
deliberate investigation.' As the balance tips away from the
plaintiff, a stronger showing on the merits is required."
Id. (quoting Rum Creek Coal Sales, 926 F.2d at 359). Thus, the bal-
ancing of hardships must be made before reaching the question of
likelihood of success on the merits, because "[u]ntil that balance of
harm has been made, the district judge cannot know how strong and
substantial must be the plaintiff's showing of `likelihood of success.'"
Id. After the district court has balanced the hardships, determined the
required showing of likelihood of success on the merits and analyzed
that likelihood, the district court also analyzes the final factor, the
public interest. Once this analysis is completed, the district court is in
the proper position to make a final determination of whether a prelim-
inary injunction should be entered.
IV.
The Court now determines whether the District Court below
abused its discretion in finding that the Appellants had failed to dem-
onstrate any likelihood of irreparable harm if an injunction were
15
denied and that the balance of hardships was therefore not in Appel-
lants' favor. The Court turns first to the issue of irreparable harm to
the Appellants.
A.
Appellants submitted numerous affidavits in support of their
motion for a preliminary injunction. Appellants argue that minors
seeking abortions suffer from trauma caused by worry over a possible
delay as the minor seeks a hearing date on which she can get to court
or as the superior court holds a second hearing de novo to review a
denial of a petition by the state district court, and by worry that these
delays may prevent her from obtaining the abortion. A minor may
also experience trauma, Appellants argue, because they fear that they
will not be able to slip away to court without their parents or others
finding out, because a note from a court for a school absence may
look suspicious, or because they risk being seen at the courthouse.
Appellants also argue that victims of rape or incest will be trauma-
tized over the possibility of having to reveal the details of the assault
in court. The delay itself is alleged to be an irreparable injury because
the medical risks of an abortion increase with each week of preg-
nancy. Many minors do not menstruate regularly and may not dis-
cover they are pregnant until later in the pregnancy. Waiting for
consent or a judicial order may cause an additional delay which
increases the medical risks even further. Appellants argue that a delay
will increase the cost of the abortion, and that the need to raise the
necessary funds to pay for the abortion may also lengthen the delay.
Appellants also argue that some minors may become so desperate that
they try to self-induce an abortion or commit suicide. Some minors
may wait until they are 18 years of age and no longer need consent,
thereby increasing the delay and the medical risks. Minors may also
choose to travel to another state where they can obtain an abortion
without consent or a judicial order.
The District Court correctly emphasized that its decision regarding
irreparable injury to the plaintiff must not be based on the ultimate
issue of the constitutionality of the statute in question and recognized
that the showing necessary to demonstrate irreparable harm is less
strict in cases involving the constitutional challenge to a statute than
in cases in which there is the possibility of future monetary damages.
16
Manning, No. 1:95cv229, slip. op. at 10 (quoting Rum Creek Coal
Sales, 926 F.2d at 362). The District Court then proceeded to deter-
mine if the alleged harms put forth by the Appellants were tied to an
alleged undue burden on the right of unemancipated minors to an
abortion. Id. at 13-25. The District Court concluded that "[t]he affida-
vits in support of a preliminary injunction do not make a `clear show-
ing' of irreparable injury which is `neither remote nor speculative, but
actual and imminent.'" Id. at 25 (quoting Direx Israel, 952 F.2d at
812). Appellants challenge this finding by arguing that the District
Court misunderstood the relationship between irreparable harm and a
constitutional violation. Appellants argue that a finding of irreparable
harm does not depend on a statute's constitutionality and that an abor-
tion regulation can cause irreparable harm without regard to whether
the regulation is legally sound on the merits.
Appellants point to the opinions of several courts which find a like-
lihood of irreparable harm from abortion regulations without a deter-
mination on the merits. See, e.g., Williams v. Zbaraz, 442 U.S. 1309,
1315 (Stevens, Circuit Justice) ("Whether or not these findings pro-
vide support for the District Court's judgment on the merits, a distinct
question which I do not consider here, it is clear that they do provide
support for plaintiffs' claims of irreparable injury if a stay is
granted."). This Court does not find, however, that the District Court
discounted this possibility or relied on a determination that the statute
was unconstitutional in its holding that there was no likelihood of
irreparable harm to the plaintiffs. The District Court merely required
that the plaintiffs demonstrate some link between their constitutional
challenge and the irreparable injuries they claimed. This is not an
improper application of Blackwelder, but is instead required by this
Circuit's finding in Direx Israel that the injury alleged not be remote
or speculative. See 952 F.2d at 812.
The District Court made specific factual findings with regard to the
causal link between the alleged injuries and the Act. The District
Court found that for the most part, delays in obtaining an abortion
would be caused not by the Act, but by the actions of the minor or
by the time it takes for the minor to discover that she is pregnant.
Manning, No. 1:95cv229, slip op. at 18. Thus, the medical risks asso-
ciated with later-term abortions and any required two-day medical
procedures would be caused by circumstances not linked to the Act's
17
judicial bypass. Id. Minors in such a situation would need these pro-
cedures and be subject to these risks whether the Act was enforced
or not. In the case of a medical crisis in which a doctor determines
that an immediate abortion is necessary because of a medical emer-
gency, the Act specifically states that no consent or judicial order is
necessary. Id. at 18-19 (citing N.C. Gen. Stat. § 90-21.9). No affida-
vits were submitted which would justify a contrary conclusion. Id.
The affidavits also did not demonstrate that suicide attempts or
attempts to self-abort are linked to the Act and not a minor's stress
about the pregnancy in general. Id. at 18. Nor was there any showing
of an increased frequency in suicide attempts by pregnant minors
which is caused by the Act. Id. In addition, the Court points out that
none of the affidavits submitted by the plaintiffs are from pregnant
minors recounting first-hand their personal experiences with the judi-
cial bypass or which make any showing that the reporting requirement
has breached the confidence of a minor. Further, although minors may
have difficulty getting to court without their parents or school finding
out, the same difficulty will be had when the minor leaves home or
school to go to her doctor for consultation or for the abortion.
Teen pregnancy is a traumatic experience which carries with it
medical risks. With this the Court does not disagree. Merely recount-
ing the trauma and risks involved in teen pregnancy, however, is not
sufficient to preliminarily enjoin enforcement of a parental consent
statute. Especially in a facial challenge in which a court is asked to
enjoin a statute with little insight into how the statute is actually being
implemented and its actual effect on unemancipated minors, plaintiffs
must draw a correlation between the alleged injuries -- which must
be more than generalized problems associated with teen pregnancy --
and the challenged provisions within the statutory scheme. The Court
agrees that young pregnant minors have a need for emotional support
as well as a confidential and expeditious bypass. But in no case have
the Appellants tied these needs to a harm directly caused by the Act.
This fact was the basis of the District Court's opinion, which made
specific factual findings and found that no such correlation was made.
Because the burden is on the plaintiff to demonstrate that all the
requirements of Blackwelder favor granting the preliminary injunc-
tion and because there is no requirement that the District Court have
found differently as a matter of law, this Court finds that the District
18
Court did not abuse its discretion by determining that the plaintiffs
failed to demonstrate a likelihood of irreparable injury.3
B.
Because the burden of proving that each of the Blackwelder prongs
favors the granting of a preliminary injunction is on the plaintiff, a
finding that the plaintiff has failed to demonstrate any likelihood of
irreparable injury would be sufficient to deny injunctive relief. See
Direx Israel, 952 F.2d at 812. Because the District Court addressed
the issue, the Court finds it necessary also to discuss the likelihood
of harm to the defendants. The District Court determined that the
interests of North Carolina would be undermined by a preliminary
injunction. Manning, No. 1:95cv229, slip op. at 27. The District Court
relied on the "overall responsibility of the state to be concerned with
the health, safety, and welfare of its citizens" and the recognition that
"this responsibility is particularly acute as to its minor citizens." Id.
Appellants argue that there is no basis in the record to support a find-
ing of harm to North Carolina and that a finding of harm based on the
state's assertion of public policy in furtherance of these interests
would improperly rely on a "states' rights" argument. The Court finds
no abuse of discretion in the District Court's finding of harm to North
Carolina.
In the case of abortion statutes, the Supreme Court has made it
quite clear that the state also has important interests at stake. As has
already been stated, Roe itself recognized the state interests in pre-
serving and protecting the life of the mother and in protecting poten-
tial human life. 410 U.S. at 162-63; see supra part II.A. This Court
takes care to recognize these interests given the Supreme Court's
statement that this portion of Roe "has been given too little acknowl-
edgment and implementation by the Court in its subsequent cases."
_________________________________________________________________
3 Certainly, there are statements within the District Court's opinion
which could be read as an analysis on the merits, not on the likelihood
of irreparable injury. It may be that the District Court overanalyzed the
alleged injury's relationship to the alleged constitutional infirmities. The
essence of the District Court's analysis, however, relied on the factual
findings that no correlation between the alleged injuries and the Act was
made.
19
Casey, 505 U.S. at 871 (plurality opinion). In the case of abortions for
minors, these interests take on added meaning when augmented by
the state's interest in protecting children from their own lack of matu-
rity and in ensuring that a minor without the maturity to choose to
have an abortion does not do so when it is not in her best interests.
Bellotti, 443 U.S. at 634; see supra part II.B. North Carolina has also
sought to protect minors by requiring that judges who become aware
of minors who are the victim of rape or incest report such abuse to
the Department of Social Services.
This Court must also recognize North Carolina's interest in the
family. The states have a high stake in protecting family relationships
and responsibilities. The laws of this nation make parents responsible
for the rearing of their children and seeing that the children are not
just fed and clothed, but properly educated so that they may grow and
mature into productive members of society. Common experience tells
us that all of society relies on the family unit for the training of chil-
dren through the family's participation on a meaningful basis in help-
ing children deal with their problems.
North Carolina has enacted its parental consent statute with a judi-
cial bypass to further these interests. If the preliminary injunction
were granted, North Carolina would have no statutory scheme
designed to further its interests with regard to minors who seek abor-
tions. Further, it would have one less avenue to discover the sexual
abuse of children and take action to protect these innocent victims.
Preventing North Carolina from pursuing these interests by enjoining
the Act would prevent it from protecting those minors who become
pregnant. Enjoining the Act would also prevent North Carolina from
keeping parents involved and submit this most important and poten-
tially catastrophic problem of a child exclusively to a doctor who does
not have as extensive a knowledge of the child's background, person-
ality, and maturity. To the extent that the state has an interest in pro-
tecting the child from a difficult family situation, North Carolina has
created a judicial bypass for children who cannot rely on the family
the way most children in healthy family units can. The Supreme
Court's repeated recognition of these state interests and the use of
parental consent statutes with judicial bypasses to further those inter-
ests is sufficient for our purposes here; this Court need not have spe-
cific evidence beyond the statutory scheme and North Carolina's
20
reason for enacting it to recognize that an injunction would prevent
North Carolina from pursuing these interests, causing harm to the
state.
Nor is this finding of harm to the state a recognition of some gen-
eral "states' rights" argument revolving around federal court interfer-
ence in a state's administration of its programs. Appellants rely on
Darr, supra, in this regard. In Darr, this Circuit upheld a preliminary
injunction granted to enjoin Maryland's enforcement of its federally-
funded foster care program which was alleged to be poorly adminis-
tered. Maryland argued that the principles of federalism protected it
from federal court interference in the administration of state pro-
grams. 838 F.2d at 121. Rejecting this argument, the Darr court stated
that if the argument were "carried to [its] logical extreme, federal
courts would be powerless to enforce federal rights in any case where
enforcement would conflict with the rights of a state." Id. Appellants
point to this language in arguing that North Carolina cannot assert its
interest in advancing public policy. Appellants' position is an over-
statement of Darr's holding. Darr did not hold that a state was barred
from asserting its ability to further its interests during an analysis of
harm to the parties. Darr held that the assertion of a state's interest
in the administration of its programs does not bar federal court review
of or preliminary relief from the program. Instead, such interests were
to be considered in the framework of the Blackwelder analysis and to
be "fully respected and overridden only in those instances in which
the apparent denial of a federal right is so egregious that the individ-
ual right to interim relief outweighs the governmental interest to be
free from federal judicial interference." Id. This holding contemplates
that any harm to state interests will be recognized in the Blackwelder
analysis, but subjected to the same balancing and analysis on the like-
lihood of success on the merits as would be done in any other case
in which a preliminary injunction is sought. The injury relied upon by
the District Court is not to a general ability to enact public policy, but
to further state interests repeatedly recognized to be constitutional by
the Supreme Court. The District Court's opinion does nothing more
than recognize a likelihood of harm to the defendants which must be
balanced against the likelihood of irreparable injuries to the plaintiff.
Because the District Court found that the Appellants had not dem-
onstrated the likelihood of irreparable injury to them or that the bal-
21
ance of hardships is obviously in their favor, this Court finds no error
in the District Court's holding.
V.
The Court now addresses the likelihood of success on the merits of
Appellants' facial challenge to the Act. The District Court found that
the Appellants had failed to show a likelihood of success on the mer-
its in this litigation. Manning, No. 1:95cv229, slip op. at 28. The
strength of the showing required of a plaintiff on the likelihood of
success on the merits depends on the result of the balance of hard-
ships, discussed supra part IV. Even if Appellants had shown that the
balance of hardships favored them so that we were required to apply
the least strict standard in our analysis on the likelihood of success on
the merits, this Court finds that Appellants have failed to raise "`ques-
tions going to the merits so serious, substantial, difficult, and doubt-
ful, as to make them fair ground for litigation and thus for more
deliberate investigation.'" Direx Israel, 952 F.2d at 812 (quoting Rum
Creek Coal Sales, 926 F.2d at 359). The Court therefore finds no
abuse of discretion in the District Court's decision.
With regard to parental consent statutes, the Supreme Court has
"been over most of this ground before," Casey, 505 U.S. at 899 (plu-
rality opinion), and has repeatedly found that states can enact parental
consent statutes provided they also enact a proper judicial bypass pro-
cedure. See supra part II.B. On appeal, Appellants challenge the ade-
quacy of the judicial bypass, arguing that its provisions, on its face,
do not comply with the standards set forth by the Supreme Court or
are an undue burden on the minor's right to an abortion. Appellants
specifically argue that the Act contains no guaranty of expedition or
confidentiality during any appeals to the North Carolina Court of
Appeals or Supreme Court; that the Act's reporting requirement of
evidence of rape or incest to The Department of Social Services fur-
ther breaches the minor's guaranty of confidentiality in bypass pro-
ceedings; and that the de novo appeal to the superior court and the
Act's requirement that an appeal to the superior court be filed within
24 hours are an undue burden on the minor's right to obtain an abor-
tion.
22
Because this is a facial challenge, Appellants carry a heavy burden.
"A facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid. The fact that the . . . Act might operate unconstitutionally is
insufficient to render it wholly invalid, since we have not recognized
an `overbreadth' doctrine outside the limited context of the First
Amendment." United States v. Salerno, 481 U.S. 739, 745 (1987).
The District Court applied this standard citing similar language in
Akron II, in which the Supreme Court found that an abortion regula-
tion should not be invalidated on a facial challenge "based on a worst-
case analysis that may never occur." 497 U.S. at 514. Appellants do
not challenge this standard.4 Thus, in order to succeed, Appellants are
_________________________________________________________________
4 The circuits are divided as to whether to apply the Salerno standard
to facial challenges of abortion regulations in light of language in the
Casey plurality opinion. In Casey, the plurality stated that an abortion
regulation is facially invalid if "in a large fraction of cases in which [it]
is relevant, it will operate as a substantial obstacle to a woman's choice
to undergo an abortion." Casey, 505 U.S. at 895; see also id. at 942
(Blackmun, J., concurring and dissenting). The Third, Eighth, and Ninth
Circuits have held that this language in Casey effectively displaced the
Salerno standard as applied to abortion regulations. Compassion in
Dying v. Washington, 79 F.3d 790, 798 n.9 (9th Cir.) (en banc), cert.
granted sub. non., Washington v. Glucksberg , ___ U.S. ___, 117 S. Ct.
37 (1996); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d
1452, 1456-58 (8th Cir. 1995), cert. denied sub nom., Janklow v.
Planned Parenthood, Sioux Falls Clinic, #6D6D 6D# U.S. ___, 116 S. Ct. 1582
(1996); Casey v. Planned Parenthood of Southeastern Pa., 14 F.3d 848,
863 n.21 (3d Cir. 1994).
The Fifth Circuit has refused to recognize that Casey overruled the
standard applied in Salerno. In Causeway Medical Suite v. Ieyoub, 109
F.3d 1096 (5th Cir. 1997), the Fifth Circuit noted that three Justices --
Justices O'Connor, Souter, and Stevens -- have expressed the view that
the Casey standard applies in opinions accompanying the denial of cer-
tiorari or a denial of a stay pending appeal. Id. at 1102-03 (citing
Janklow, ___ U.S. at ___, 116 S.Ct. at 1583 (Stevens, J., mem. respect-
ing denial of certiorari); Fargo Women's Health Organization v. Schafer,
507 U.S. 1013, 1014 (1993) (O'Connor, joined by Souter, J., concurring
in denial of stay pending appeal)). Three other Justices -- Justices Rehn-
quist, Scalia, and Thomas -- have expressed their opinion that Salerno
23
required to show that under no set of circumstances can the Act be
applied in a manner which is not an undue burden on an unemanci-
pated pregnant minor's right to obtain an abortion.
As already discussed, when reviewing the Act's judicial bypass, a
court's primary focus is on the standards set forth by the Supreme
Court in Bellotti. If the specific provision at issue is addressed by
Bellotti and satisfies its standards, then the provision cannot be said
to be an undue burden on the minor's right to an abortion. If the
Bellotti standards do not address the specific provision, the court then
turns to whether the provision is an undue burden on the minor's right
to an abortion irrespective of Bellotti. See supra part II.B.
_________________________________________________________________
applies. Id. at 1103 (citing Janklow, ___ U.S. at ___, 116 S.Ct. at
1584-87 (Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting
from denial of certiorari)). Because opinions respecting the denial of cer-
tiorari or regarding stays pending appeal are considered dicta, the Fifth
Circuit found that the Court appeared to be evenly split in non-binding
opinions and that "it would be ill-advised for us to assume that the Court
will abandon Salerno because three members of the Court now desire
that result." Id. at 1103-04.
The parties have not asked this Court to decide that the District Court
improperly applied the Salerno standard for review of facial challenges,
and this issue is not now properly before the Court. The Court notes in
passing, however, that the reasoning of the Fifth Circuit appears to be
most persuasive. It is not the province of the court of appeals to predict
how the Supreme Court will ultimately rule on an issue. Casey does not
specifically overrule Salerno. At the moment, the most that can be said
is that three Justices have indicated a desire to do so. Until the Supreme
Court specifically does so, though, this Court is bound to apply the
Salerno standard as it has been repeatedly applied in the context of other
abortion regulations reviewed by the Supreme Court, see, e.g., Rust v.
Sullivan, 500 U.S. 173, 183 (1991); Akron II , 487 U.S. at 514; Webster
v. Reproductive Health Servs., 492 U.S. 490, 524 (1989) (O'Connor, J.,
concurring), and in the context of challenges to legislative acts based on
other constitutional grounds, see, e.g., Reno v. Flores, 507 U.S. 292,
300-01 (1993) (stating in context of constitutional and statutory chal-
lenge to deportation regulations of the Immigration and Naturalization
Service that Salerno standard applies to constitution-based challenges as
well as statute-based challenges).
24
A.
Appellants argue that, although it purports to do so, the Act does
not satisfy Bellotti's requirements that the judicial bypass procedures
maintain the confidentiality of the minor5 or provide her with an
expeditious decision on her petition. It is clear that the statute pro-
vides for expedition and confidentiality in the provisions which obvi-
ously apply to hearings before the state district courts and superior
courts. Appellants' challenge is based on the argument that these pro-
visions do not apply to the North Carolina Court of Appeals and
Supreme Court. Appellants argue that the Act contains no guaranty
of confidentiality or expedition, as required by Bellotti, 443 U.S. at
643-44; see supra part II.B, at the appellate level beyond the superior
court. The North Carolina Court of Appeals has ruled that minors
have no right to appeal past the superior court, but may seek a writ
of certiorari. In re Doe, supra. Because there is nothing on the face
of the Act to indicate that it does not comply with Bellotti and
because the North Carolina Court of Appeals has demonstrated that
it is well aware of the need for expedition and confidentiality at all
levels of the bypass, the Court finds these provisions of the Act to be
constitutional.6
State legislatures need only provide the framework for a proper
judicial bypass which complies with Bellotti. See Ashcroft, 462 U.S.
at 491 n.16. North Carolina contends that the Act specifically pro-
vides for a confidential judicial bypass. See N.C. Gen. Stat. § 90-21.8
("Court proceedings under this section shall be confidential . . . ."); id.
§ 7A-675 ("The court's entire record of a proceeding involving con-
sent for an abortion on an unemancipated minor . . . is not a matter
_________________________________________________________________
5 Appellants also challenge the reporting requirement as violating
Bellotti's mandate of confidentiality. The Court discusses this argument
at infra part V.B.
6 While the Court concludes that expeditious determinations on appeal
to the North Carolina Court of Appeals and Supreme Court can be
expected in all judicial bypass cases, it would have simplified the prob-
lems with which this Court has had to contend if the Act provided a level
of specificity for expedition in the state appellate courts which mirrored
the expedition contained in the statute with respect to the state district
court and superior court hearings.
25
of public record, shall be maintained separately from any juvenile
record, shall be withheld from public inspection, and may be exam-
ined only by order of the court, by the unemancipated minor, or by
the unemancipated minor's attorney or guardian ad litem."). With
regard to expedition at the appellate level, North Carolina relies on
already existing procedures. North Carolina has provided statutory
authority for discretionary review by the North Carolina Supreme
Court of any adverse decision by the superior court. N.C. Gen. Stat.
§ 7A-31. Further, the North Carolina Rules of Appellate Procedure
state:
To prevent manifest injustice to a party, or to expedite deci-
sion in the public interest, either court of the appellate divi-
sion [Court of Appeals or Supreme Court] may . . . suspend
or vary the requirements or provisions of any of these rules
in a case pending before it upon application of a party or
upon its own initiative, and may order proceedings in accor-
dance with its directions.
N.C.R. App. P. 2. After argument was heard in this case, the North
Carolina Court of Appeals found that the Act's judicial bypass "pro-
vide[s] expeditious appellate review without unduly burdening the
constitutional rights of the minor" while continuing "to insure the sta-
tutorily required confidentiality." In re Doe, ___ S.E.2d at ___, slip
op. at 6 & 7.
The District Court below agreed with North Carolina. Manning,
1:95cv229, slip op. at 16-19. The District Court found that Bellotti's
expedition requirements were met by the ability of the minor to seek
an appeal directly to the state Supreme Court, obviating the time
needed to seek a hearing at the Court of Appeals, and the ability of
the minor to move for and the appellate courts to grant an expedited
hearing and decision pursuant to the Rules of Appellate Procedure.
The District Court also found that the provisions of the Act with
regard to confidentiality apply generally to all "[c]ourt proceedings
under this section," N.C. Gen. Stat. § 90-21.8(d), and are not limited
on the face of the Act to the state district and superior court levels.
Appellants cite several cases from other circuits which deal with
similar issues. Appellants argue these cases require this Court to find
26
that, because the Act does not state with specificity the time lines
which appellate courts above the superior court level must follow in
order to provide an expeditious hearing and can be read such that its
requirement of confidentiality does not apply to the appellate courts,
the Act is unconstitutional on its face. For example, in Causeway
Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997), the Fifth Cir-
cuit held that a statute which contained no specific time lines at any
level but instead only provided that the hearing proceed in a summary
manner did not comply with Bellotti. Id. at 1110-11. The Fifth Circuit
relied on the Ninth Circuit's opinion in Glick v. McKay, 937 F.2d 434
(9th Cir. 1991), overruled in part, Lambert, supra. In Glick, the Ninth
Circuit dealt with a statute which provided specific time periods for
almost every level, but did not contain any time limitation within
which the state district court was required to rule upon the decision.
The Ninth Circuit found that this lack of specificity at the state district
court level violated the requirements of Bellotti. Id. at 441. In Zbaraz
v. Hartigan, 763 F.2d 1532 (7th Cir. 1985), aff'd by equally divided
court, 484 U.S. 171 (1987) (per curiam), the Seventh Circuit found
that a judicial bypass which required the state Supreme Court to pro-
vide by rule for an expedited and confidential appeal was constitu-
tionally flawed because the state Supreme Court relied on a general
rule which provided it with the general discretion to expedite an
appeal in any case instead of relying on a specific rule tailored solely
to the judicial bypass of the parental notice statute. Id. at 1539-42.
The Seventh Circuit also applied this reasoning to Bellotti's confiden-
tiality requirement, finding the bypass unconstitutional on its face
because it lacked specific rules beyond the requirement that the
bypass be confidential and ensure the minor's anonymity. Id. at
1543-44.
With respect, the Court finds this reasoning unpersuasive. Because
this Court departs from the reasoning used by these other circuits, the
Court finds it necessary to discuss its reasoning for departure at some
length. These opinions rely upon an assumption that state courts will
ignore the mandates of Bellotti if given the chance. Such an assump-
tion is improper. State judges are bound, just as federal judges are, to
uphold the Constitution of the United States and to follow the opin-
ions of the United States Supreme Court. See U.S. Const. art. VI
("This Constitution, and the Laws of the United States . . . shall be the
supreme Law of the Land; and the Judges in every State shall be
27
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding."); Martin v. Hunter's Lessee, 14 U.S.
(1 Wheat.) 304, 315 (1816) ("The state courts are to adjudicate under
the supreme law of the land, as a rule binding upon them. They . . .
act upon it as a municipal law of the state where they sit, but derived
from the government of the United States."). The Supreme Court has
ruled, in the context of challenges to abortion regulations, that federal
courts should not assume lightly that a state will not comply with
Supreme Court mandates. While discussing Glick in its opinion in
Lambert, the Supreme Court specifically admonished the Ninth Cir-
cuit, finding, in a facial challenge, it "was incorrect [for the Ninth Cir-
cuit] to assume that Montana's statute `narrow[ed]' the Bellotti test
. . . ." Lambert, ___ U.S. at ___, 117 S.Ct. at 1172. In Akron v. Akron
Center for Reproductive Health, 462 U.S. 416 (1983), partially over-
ruled on other grounds, Casey, supra ("Akron I"),7 the Supreme Court
held that "[i]t is reasonable to assume . . . that a state court presented
with a state statute specifically governing abortion consent procedures
for pregnant minors will attempt to construe the statute consistently
with constitutional requirements." Id. at 441; see also Akron II, 497
U.S. at 515 ("Absent a demonstrated pattern of abuse or defiance, a
State may expect that its judges will follow mandated procedural
requirements. There is no showing that the time limitations imposed
by [the statute] will be ignored."); Ashcroft, 462 U.S. at 491 n.16
("There is no reason to believe that Missouri will not expedite any
appeal consistent with the mandate in our prior opinions.").
The fault the Supreme Court found with the judicial bypass at issue
in Akron I was not in the generality of the statute, but the lack of pro-
cedures for making the necessary determinations called for in a judi-
cial bypass by Bellotti. Akron I, 462 U.S. at 416 & n.31. Under those
circumstances, the Court could not find the statute to be "reasonably
susceptible of being construed to create an `opportunity for case-by-
case evaluations of the maturity of pregnant minors.'" Id. at 441-42
_________________________________________________________________
7 In Casey, the Supreme Court overruled its holding in Akron I finding
unconstitutional a statute which required informed consent; that a physi-
cian, not a qualified assistant, give such information; and that the mother
wait twenty-four hours before obtaining an abortion. Casey's holding in
these regards is irrelevant to this decision today, and this Court finds that
the relevant portion of Akron I is still persuasive.
28
(quoting Bellotti, 443 U.S. at 643 n.23 (plurality opinion)). The Court
in Akron I relied upon the total lack of tools which would allow the
state courts to carry out a judicial bypass. This demonstrated a clear
deficiency on the face of the statute which would prevent compliance
with Bellotti. In Causeway, the Fifth Circuit found an intent on the
part of the state legislature not to comply with Bellotti through lan-
guage in amendments to the Louisiana parental consent statute. These
amendments changed the provision, which required a court to certify
an abortion when a minor shows that she is mature or that an abortion
would be in her best interests, by changing the mandatory word
"shall" to "may." Louisiana argued that the change did not alter the
meaning of the statute to make the decision to certify the abortion dis-
cretionary instead of mandatory. The Fifth Circuit found that because
the legislature had specifically altered the language of the statute,
under Louisiana law, the legislature is presumed to have intended a
change in the law. Id. at 1109. Thus, the Fifth Circuit had found an
intent on the part of the state legislature, evidenced by the amend-
ment, not to comply with Bellotti's requirement that the state judge
must, not may, certify the abortion after the minor makes the required
showings.
Returning to the case at hand, this Court cannot assume that the
state appellate courts will find the confidentiality requirements con-
tained within the Act do not apply to them or that the appellate courts
will not provide for an expedited appeal and decision. It is improper
for a federal court to assume easily, without factual support of such
findings, that state courts will not comply with the confidentiality and
expedition mandates of the Supreme Court. This Court must, and the
Court emphasizes that it does, expect state judges to comply with the
mandates of the Supreme Court and ensure expedition and confidenti-
ality at every level of the judicial bypass which hears the petition and
for every minor utilizing it. This Court finds that a plaintiff challeng-
ing state statutes which require parental or judicial consent before a
minor can obtain an abortion must show that the statutory program on
its face exhibits some clear intent of the state to circumvent Bellotti's
requirements or some clear deficiency making compliance impossi-
ble, or introduce evidence showing that the statutory program is actu-
ally applied in a manner which does not comply with Bellotti.
29
Applying this standard to the North Carolina Act, the Court finds
that the Appellants have failed to make the required showing. The
North Carolina Act provides the state courts with full jurisdiction and
statutory authority to fulfill their duties under the judicial bypass. The
Act specifically provides unemancipated pregnant minors an absolute
right to an expeditious and confidential hearing initially at the state
district court and an appeal as of right to the superior court. Hearings
and decisions at these two levels must conclude within, at most, 17
days.8 By judicial interpretation, minors have access to review of erro-
neous lower court decisions by applying for a writ of certiorari to the
North Carolina Court of Appeals and Supreme Court. In re Doe,
supra. The North Carolina Court of Appeals has already demonstrated
that this structure is sufficient to correct a misapplication of the Act
by the lower courts. See id. (reversing superior court's denial of peti-
tion because superior court failed to apply all provisions of Act and
ordering waiver of parental consent). When appeals above the supe-
rior court are heard, procedural rules -- such as those giving the
minor the opportunity to bypass the North Carolina Court of Appeals
or which allow the appellate courts to expedite the minor's appeal --
are in place which will enable the appellate courts to comply with
Supreme Court mandates to provide an expeditious hearing. When
hearing the appeal in In re Doe, the North Carolina Court of Appeals
demonstrated its understanding of the expedition requirements by
hearing and deciding an appeal in a minor's petition only four days
after the appeal was filed. See In re Doe, ___ S.E.2d at ___, slip op.
at 1. Further, nothing on the face of the Act exempts the appellate
courts from the Act's confidentiality requirements, and there is no
reason to assume that the North Carolina courts will not interpret the
Act to require confidentiality at the appellate court level. Again, in the
only state opinion on which this Court can rely, the North Carolina
Court of Appeals referred to continuing confidentiality during any
appeals above the superior court level. Id. at ___, slip op. at 6-7. On
their face, then, these provisions of the Act comply with Bellotti and
_________________________________________________________________
8 This time period is calculated based on circumstances in which the
petition is denied at the first court level and each actor within the bypass
takes the maximum amount of time allowed to act: the state district court
seven days to hear the petition and deny it, the minor 24 hours to appeal,
the superior court seven days to hear the appeal and 48 hours to issue its
decision.
30
are not an undue burden on a minor's right to an abortion. The Dis-
trict Court therefore did not err in finding that the Appellants were not
likely to succeed on the merits with these claims.
B.
Appellants also bring one other challenge under the confidentiality
prong of Bellotti. Appellants claim that the reporting requirement is
also a breach of the minor's confidence. The Act requires the state
judge to report any evidence that the minor was raped or is the victim
of incest discovered during the bypass procedure. N.C. Gen. Stat.
§ 90-21.8(f). This duty is the same as that imposed on anyone else
who might come upon such evidence through other circumstances. Id.
§ 7A-543. Once reported, the Department of Social Services is
required to make "a prompt and thorough investigation of the abuse
or neglect, and the risk of harm to the juvenile, in order to determine
whether protective services should be provided or the complaint filed
as a petition." Id. § 7A-544. The Department of Social Services is also
required to determine if other juveniles in the home are threatened
and in need of protective services. Id. Appellants argue that if a preg-
nant minor who is the victim of rape or incest knows that this infor-
mation will be reported, she may be deterred from utilizing the
judicial bypass. The District Court did not agree and found that the
reporting requirement was designed to protect the minor and, in any
case, the minor could obtain certification for the abortion without dis-
closing the rape or incest by proving that she is mature or that the
abortion is in her best interests. Manning, 1:95cv229, slip. at 22-23.
This Court finds no abuse of discretion in the District Court's holding.
At no time has a majority of the Supreme Court held that a report-
ing requirement is unconstitutional. Appellants rely primarily on Jus-
tice O'Connor's concurrence in Hodgson, supra, and the Eighth
Circuit's opinion in Miller, supra, to support their position. In
Hodgson, the Court upheld a statute which required notification to
both parents of the minor's intention to have an abortion unless the
minor's doctor reported that she was the victim of abuse or neglect
or obtained certification through a judicial bypass, Justice O'Connor,
discussing the reporting provision, stated that the provision was "in
reality, a means of notifying the parents." Hodgson, 497 U.S. at 460
(O'Connor, J., concurring). Regardless of this statement, however,
31
Justice O'Connor voted, along with four other justices, to uphold the
statute because it contained a judicial bypass through which the minor
could avoid reporting the abuse and still obtain a court order authoriz-
ing the abortion. In Miller, the statute's only exception from the
parental notice was for cases in which the doctor reported abuse of
the minor. No judicial bypass was provided. The Eighth Circuit found
that "[i]n practice, it seems, South Dakota's abuse exception will
sometimes result in parental notification, even if after-the-fact."
Miller, 63 F.3d at 1461.
As previously stated, this Court should not assume on a facial chal-
lenge that the Act's reporting requirement will in practice result in
parental notification. See supra part V.A. The Act contains a specific
statutory requirement that "[a]ll information received by the Depart-
ment of Social Services, including the identity of the reporter, shall
be held in strictest confidence by the Department." N.C. Gen. Stat.
§ 7A-544. Further, Bellotti requires that the fact of the abortion be
kept confidential, but does not address the fact that the child has been
the victim of rape or incest. The state judge can report the abuse to
the Department of Social Services without revealing the fact that the
child has sought or obtained an abortion. This Court does not believe
that Bellotti should be construed more broadly than its holding to
cover evidence of rape or incest. Most important, as was the case in
Hodgson, a minor who does not disclose the abuse can still receive
judicial consent if she can prove that she is mature or that the abortion
is in her best interests. Thus, the Act does not require the minor to
choose between obtaining the consent of a parental abuser for the
abortion or reporting the parental abuser to authorities.
Lastly, this Court believes that the Appellants are advocating an
unconscionable position. Appellants would have a judge, who is
sworn to uphold the law, withhold vital information regarding rape or
incest which would allow state authorities to end the abuse, protect
the victim, and punish the abuser. Not only would Appellants' posi-
tion prevent the judge from helping the victim seeking the abortion,
but it would prevent the judge from helping other juveniles in the
same household under the same threat of incest. This Court does not
believe that the Constitution requires judges to be placed in such an
untenable position. Instead, like the District Court, we agree with Jus-
tice Kennedy's statement in Hodgson:
32
The Court challenges the efficacy of this last exception
because it believes that the statutory requirement that a phy-
sician report a minor's declaration of abuse to appropriate
authorities . . . will deter minors from using the exception.
This is not a proper basis for declaring the law invalid. Laws
are not declared unconstitutional because of some general
reluctance to follow a statutory scheme the legislature finds
necessary to accomplish a legitimate state objective. . . . No
one can contend that a minor who is pregnant is somehow
less deserving of the State's protection. It is reasonable to
provide that any minor who contends that she cannot notify
her parent or parents because she is the victim of neglect or
abuse must allow the State to use its power to investigate
her declaration and protect her from harm.
Hodgson, 497 U.S. at 493-94 (Kennedy, J., joined by Rehnquist, C.J.,
White J., and Scalia, J., concurring). As the brief of North Carolina
Right to Life, appearing as amicus curiae, points out, Appellants'
position would instead afford protection to rapists and perpetrators of
incest. This can only serve the interests of the criminal, not the child.
Because the reporting requirement should be beneficial to the minor,
does not violate Bellotti, and is not an undue burden on the minor's
right to an abortion, this Court finds no abuse of discretion in the Dis-
trict Court's holding that Appellants are not likely to succeed on the
merits with this challenge.
C.
Appellants next claim that the de novo hearing at the superior court
after a denial at the state district court is an undue burden on the
minor's right to an abortion. The Bellotti standards do not address
whether a minor can be required to undergo a second hearing in
which she must personally recount her story to the superior court after
she has already done so to the state district court and had her petition
denied. This Court must therefore determine if the second de novo
hearing is an undue burden irrespective of Bellotti. The District Court
found that the de novo hearing before the superior court was not an
undue burden, but was instead a "bonus, a second bite of the apple,
so to speak." Manning, 1:95cv229, slip op. at 14.
33
Appellants argue that the District Court failed to recognize the fear
and tension that a minor feels when undergoing a hearing in which
she must recount intimate details about her personal life. Appellants
argue that the Supreme Court recognized this fear and tension in
Hodgson, 497 U.S. at 441-42 & n.29. Appellants correctly concede
that the Supreme Court nonetheless approved parental consent stat-
utes with a judicial bypass. The thrust of Appellants' argument is that
although one hearing is constitutionally permissible, a second hearing
in which the minor must again go to court and discuss her personal
life rises to the level of an undue burden.
The Court finds no constitutional defect with the second de novo
hearing. On the contrary, the Court finds that the second hearing can
in fact operate to make it more likely that the minor will succeed on
her petition. As the District Court recognized, a court reviewing a
petition de novo hears the issues and makes its decisions as if the peti-
tion had been originally filed in that court, "as if no hearing had been
held by the [lower court] and without any presumption in favor of the
[lower court] decision." Caswell County v. Hanks, 462 S.E.2d 841,
843 (N.C. Ct. App. 1995). The influence of the lower court's record
and opinion should not be underestimated. When a court must review
an appeal under a standard of review which includes viewing the
record and opinion of the court below, some deference, in some man-
ner, is paid to the lower court's findings. In the case of an appeal
regarding a minor's decision to have an abortion, the deference would
be paid to a denial of that petition. However, because the Act provides
for a de novo review and a new hearing in which a new record will
be created, a minor appealing to the superior court is not prejudiced
by the lower court's denial of her petition, either by the findings of
the lower court or by the record compiled by the lower court. Under
this interpretation, the District Court's opinion that this provision is
a bonus, not a burden, is not contrary to law. This Court cannot say
that a second de novo hearing is per se an undue burden on the
minor's right to an abortion. Unlike the Supreme Court in Hodgson,
this Court does not have the benefit of an extensive record which sup-
ports Appellants' arguments. Certainly, the expedition with which the
superior court must act is the important consideration in the minor's
appeal. There is no showing that requiring the petitioner to testify or
explain her situation a second time will increase the time element. In
fact, this procedure recognizes that time might well be lost in having
34
the record before the state district court transcribed and submitted to
the superior court. This Court therefore finds no abuse of discretion
in the District Court's holding that the de novo hearing is not an
undue burden.
D.
The District Court also found that the Appellants were unlikely to
succeed in their challenge of the Act's requirement that a minor
appeal a denial of her petition by the state district court to the superior
court within twenty-four hours of the state district court's decision.
The District Court based its finding on language in Ashcroft, supra,
which it interpreted as approving of a similar requirement in a Mis-
souri parental consent statute. Appellants argue such a short time
period is an undue burden because it truncates the ability of the minor
to preserve her right to an abortion and because the requirement
would be difficult for minors to meet. Appellants primarily rely on
Planned Parenthood v. Neely, 804 F. Supp. 1210 (D. Ariz. 1992), in
support of their position.
There are two distinguishing factors between North Carolina's Act
and the statute at issue in Neely. In dicta to its opinion in Neely, the
United States District Court for the District of Arizona was primarily
concerned with the ability of an unrepresented minor to decipher the
procedures for an appeal and to prepare and file a notice of appeal
within twenty-four hours, as well as problems with the procedures in
the Arizona statute regarding notification to the minor of the court's
decision. Id. at 1217. Minors appealing an adverse decision under
North Carolina's Act do not face these problems. North Carolina
allows the minor to proceed through a guardian ad litem and requires
appointment of counsel if so requested by the minor. N.C. Gen Stat.
§ 90-21.8(c). Further, there are no problems associated with notifying
the minor of the court's decision or any need for the minor to return
to the courthouse a second time to file her appeal. Under rules
adopted by the North Carolina Supreme Court, the state district court
must issue its decision and inform the minor at the conclusion of the
hearing. In order to appeal, the minor need only sign and date a pre-
printed notice of appeal on the back of the order she receives from the
state district court judge at the conclusion of the hearing. Thus, the
factors which led the district court in Neely to find an undue burden
35
are not a burden on a minor pursuing a judicial bypass under the
North Carolina Act.
Further, there is no error in the District Court's reliance on
Ashcroft. The Missouri statute at issue in Ashcroft provided for the
same time limit to file an appeal. Although this time limit was not
specifically litigated, the Supreme Court did discuss the provision.
The Court, after quoting the provision containing the twenty-four
hour time limit to appeal, stated; "We believe this section provides the
framework for a constitutionally sufficient means of expediting judi-
cial proceedings." Ashcroft, 462 U.S. at 492 n.16. We cannot accept
Appellants' argument that we should disregard the Supreme Court's
statement. The Ashcroft opinion specifically quotes the twenty-four
hour time limit provision and specifically approved of the section
containing that provision. This is sufficient to support the District
Court's finding. This Court therefore finds no abuse of discretion on
the part of the District Court.
VI.
The last prong in the Blackwelder analysis is whether a preliminary
injunction would be in the public interest. The Act has been on the
books since 1995, and only the reporting requirement has been sub-
ject to an injunction by the District Court below in its first action on
this case That injunction has not been in force since May 1996, when
this Court set the injunction aside. The Act has therefore been opera-
tive in its entirety for a year and in the most part for more than a year.
Refusing to enjoin the Act at this point would further any interest in
maintaining the status quo pending any further appeal in this case.
Clearly, the Act is in the best interests of the public. The Act helps
preserve the traditional line of responsibility between parent and
child. The Act also helps protect the family unit as a viable and time-
honored means of raising children, and yet, through its judicial
bypass, takes into account exceptional cases in a confidential and
expeditious manner. Given these facts, and the Court's foregoing
analysis on the balance of hardships and likelihood of success on the
merits, the Court finds no abuse of discretion in the District Court's
determination that a preliminary injunction would not be in the pub-
lic's interest.
36
VII.
Lastly, Appellants argue that the District Court erroneously inter-
preted the Act's medical emergency exception to require judicial
authorization of an abortion. In its discussion of whether the de novo
appeal to the superior court was likely to be found an undue burden,
the District Court stated: "If there is an emergency need for the abor-
tion, and the attending physician so determines, immediate access to
judicial authorization is provided." Manning, 1:95cv229, slip op. at
14. Interpretation of this provision was not litigated by the parties and
was not properly before the District Court. Further, such an interpreta-
tion would be inconsistent with the plain language of the Act, which
states that in the case of a medical emergency, parental consent is not
necessary, which we interpret as meaning a judicial bypass of that
consent is not necessary. N.C. Gen. Stat. § 90-21.9 ("The require-
ments of parental consent prescribed by G.S. 90-21.7(a) shall not
apply when, in the best medical judgment of the physician based on
the facts of the case before the physician, a medical emergency exists
that so complicates the pregnancy as to require an immediate abor-
tion, or when the conditions prescribed by G.S. 90-21.1(4) are met.").
Given the context of the District Court's statement, this Court finds
that the statement was not meant to be an interpretation of the provi-
sion, and to the extent that it might have been, any interpretation of
the Act to require judicial authorization before an abortion obtained
for a medical emergency would be in error.
VIII.
For the reasons discussed, the Court finds that the District Court
did not abuse its discretion in denying Appellants' motion for a pre-
liminary injunction and failing to enjoin enforcement of the Act. The
judgment of the District Court is therefore
AFFIRMED.
37